Sapinda Marriages

Context:

• The Delhi High Court has recently dismissed a petition questioning the constitutionality of Section 5(v) of the Hindu Marriage Act, 1955 (HMA), which does not allow Sapinda Marriage between Hindus.

What is a Sapinda Marriage?

1. A Sapinda marriage is when people closely related to each other get married. 
2. As per Section 5(v) of the Hindu Marriage Act, such marriages are prohibited within the following generations on both the mother’s and father’s sides:

3. An exception is provided for those following any existing custom that permits such marriage.
4. However, customs must be followed for a long time to be valid. Hence, the court may ask for proof of such custom.

What are the theories on which such legal provision is made?

1. The concept of sapinda comes from the word pinda, which means one’s body.
2. Vijaneshwara’s Theory: This theory says that people are related as sapindas if they share a common ancestor. They are linked because they share the same body particles from their ancestors. This concept encourages marrying outside one's own family. 
3. Jimutavahana's Theory: According to this theory, people become Sapindas not just through blood or marriage, but also through physical contact during religious rituals done for the same ancestors such as Pinda-daan.
4. The Hindu Marriage Act of 1955 follows Vijaneshwara's idea but with some changes, allowing more flexibility in who can marry whom.

What has happened in the recent case?

1. In 2007, a woman’s marriage was declared void when her husband proved their marriage as Sapinda.
2. The woman approached the High Court challenging the constitutional validity of the prohibition of Sapinda Marriage.
3. She argued that Section 5(v) of the Hindu Marriage Act violates Article 14 of the constitution which calls for Equality before the law and Equal protection of law.
4. She claimed that her marriage had the consent of the family which indicates its legitimacy.
5. However, the court rejected the petition saying that the proof of custom is needed to claim an exception for the marriage.
6. The court’s statement is based on the need to regulate the Incestuous marriage. Incestuous marriage refers to the act of marrying someone closely related by blood, such as a sibling, parent, or close relative, which is generally considered taboo in many societies. Taboos are things that society or culture considers inappropriate, disrespectful, or forbidden to talk about or engage in.

Why is Incestuous marriage considered taboo in many societies?

1. Genetic risks: When closely related people have children, those children have a higher chance of having health problems because they might inherit harmful genetic traits from both parents.
2. Social norms: It goes against what most people think is right in families. It can cause a lot of problems like family fights and feeling ashamed in society.

What is the Status of Incestuous Marriage in other countries?

1. In the USA, Incestuous marriages are banned in all states except New Jersey and Rhode Island.
2. In some countries, like France and Portugal, there are no laws against Incestuous marriage.
3. In Italy, Incest is considered a crime if it causes a public scandal.

Why such marriages are observed in South India?

1. In some communities in South India, it's common for marriages to occur between relatives, like cousins or within the same extended family. This practice is known as consanguineous marriage.
2. The latest National Family Health Survey (NFHS-5) conducted between 2019-2021, shows that Tamil Nadu has the highest number of consanguineous marriages at 28% with Karnataka close behind at 27%.
3. Such marriages have been taking place since 2000 years among Dravidian Hindus. 
4. The reasons behind such practice are:
   1. Earlier, marrying someone beyond a certain river or area was considered to be impacting their reputation.
   2. The wealth of the family remains the same family.
   3. Girls are safe as families have known each other for years.
   4. Families do not need to pay a large dowry in the marriage.

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